JUNE 2008 AMENDMENT AGREEMENT
JUNE
2008 AMENDMENT AGREEMENT
THIS
JUNE
2008 AMENDMENT AGREEMENT (this “Agreement”)
is
made as of June 12, 2008, among Customer Acquisition Network Holdings, Inc.,
a
Delaware corporation (the “Company”),
the
Subsidiaries, and Longview Marquis Master Fund, L.P., a British Virgin Islands
limited partnership (“Buyer”).
W
I T N E
S S E T H:
WHEREAS,
the Company, Buyer and Alpha Capital Anstalt, a Xxxxxxxxxxxx corporation
(“Alpha”
and,
together with Buyer, the “Original
Buyers”),
entered into that certain Securities Purchase Agreement, dated as of November
15, 2007 (as amended, restated, supplemented or otherwise modified and in effect
from time to time, the “Purchase
Agreement”),
pursuant to which the Company issued to the Original Buyers senior secured
notes
in an aggregate original principal amount of $5,000,000 (such notes, together
with any promissory notes or other securities issued in exchange or substitution
therefor or replacement thereof, and as any of the same may be amended,
restated, supplemented or otherwise modified and in effect from time to time,
each a “Note”
and,
collectively, the “Notes”)
(capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Buyer Note (as defined below), or if not defined in
the
Buyer Note, as defined in the Purchase Agreement);
WHEREAS,
on the date hereof, Note No. VAM-001 issued to Buyer in the principal amount
of
$4,388,889.00 remains outstanding (the “Buyer
Note”);
WHEREAS,
the Company is contemplating a sale of the business (the “Options
Business”)
operated by Options Acquisition Sub, Inc. (“Options”),
whether by sale of the capital stock of Options, sale of all of the assets
of
Options (such assets being referred to herein as the “Options
Assets”),
merger or otherwise (the “Options
Sale”);
WHEREAS,
the potential purchaser of the Options Business in the Options Sale (the
“Options
Purchaser”)
is
contemplating the sale of equity securities to fund the purchase price to be
delivered to the Company pursuant to the Options Sale (any such sale (or sales)
of equity securities consummated to fund the purchase price for the Options
Sale, or otherwise consummated after the date hereof and prior to, or
concurrently with, the consummation of the Options Sale, the “Equity
Financing”);
and
WHEREAS,
the Company and Buyer desire to amend the terms of the Buyer Note as provided
herein.
NOW,
THEREFORE, in consideration of the agreements, provisions and covenants
contained herein and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, each of the undersigned agrees
as
follows:
1. Amendment
of the Buyer Note.
a. Buyer
hereby agrees with the Company that, subject to, and effective upon, the receipt
by Buyer of cash in the amount of $50,000 (the “Extension
Amount”),
by
wire transfer of immediately available funds in accordance with the instructions
set forth on Exhibit A
hereto,
from the Company by no later than 5:00 p.m. New York time, on June 13, 2008
(such time and date, the “Payment
Deadline”),
the
definition of “Maturity
Date”
set
forth in the Appendix to the Buyer Note shall be amended to read in its entirety
as follows:
“Maturity
Date”
means
June 20, 2008.”
b. In
the
event that Buyer does not receive the Extension Amount by the Payment Deadline,
this Agreement shall be null and void and of no further force and effect, and
the Buyer Note shall not be amended in the manner set forth in this Section 1
(i.e.,
the definition of “Maturity
Date”
in
the
Buyer Note shall remain as originally set forth therein).
2. Consent
to Sale of Options Business; Further Amendment of the Buyer Note; and Limited
Waiver.
a. Provided
that Buyer receives the Extension Amount by the Payment Deadline, Buyer hereby
(i) consents to the Option Sale, and (ii) authorizes and directs the Collateral
Agent to take all steps necessary to, contemporaneously with the consummation
of
the Options Sale, release any security interest of the Collateral Agent in
the
Options Assets and, in the event of an Options Sale that is in the form of
a
sale, assignment, transfer or merger which involves the transfer of the capital
stock of Options, any security interest of the Collateral Agent in the capital
stock of Options; provided, however, that such consent to the Options Sale
and
such agreement to the release of security interest are subject to, and
contingent upon, the satisfaction in full of each of the following conditions
(the failure to satisfy any of which shall cause such consent and agreement
to
be null and void and of no further force or effect):
(i) the
Options Purchaser is a company subject to the reporting requirements of Section
13 of the Securities Exchange Act of 1934, as amended (the “1934
Act”),
and
the common stock of which is listed on a national securities exchange or quoted
on the OTC Bulletin Board;
(ii) as
consideration for the Options Sale, the Company receives from the Options
Purchaser, at the closing of the Options Sale, (A) (I) no less than $2,000,000
in unrestricted, net cash proceeds (“Cash
Proceeds”),
(II)
a secured promissory note (any secured promissory note issued by the Options
Purchaser to the Company pursuant to the Options Sale, an “Options
Note”) in
an
aggregate principal amount representing no less than the result of $4,000,000,
minus the amount of such Cash Proceeds, and (III) common stock of the Options
Purchaser that represents no less than thirty percent (30%) of the outstanding
equity (in terms of both economic interests and voting power) of the Options
Purchaser, on a fully-diluted basis (provided that for purposes of calculating
outstanding equity of the Options Purchaser on a fully-diluted basis pursuant
to
this Section
2(a)(ii),
outstanding equity of the Options Purchaser on a fully-diluted basis shall
exclude shares of restricted common stock, and shares of common stock issuable
upon exercise of options, issued or issuable to officers, directors and
employees of the Options Purchaser and its subsidiaries for bona fide services
rendered thereto), immediately following the consummation of the Options Sale
(the common stock of Options Purchaser received by the Company in connection
with the Options Sale, the “Purchaser
Equity”),
in
the event that the aggregate amount raised in the Equity Financing (the
“Equity
Financing Amount”)
is
less than or equal to $2,500,000; or (B) (I) Cash Proceeds in an amount equal
to
no less than eighty percent (80%) of the Equity Financing Amount, (II) an
Options Note in an aggregate principal amount representing no less than the
result of $4,000,000, minus the amount of such Cash Proceeds, and (III) common
stock of the Options Purchaser that represents no less than thirty percent
(30%)
of the outstanding equity (in terms of both economic interests and voting power)
of the Options Purchaser, on a fully-diluted basis, immediately following the
consummation of the Options Sale , in the event that the Equity Financing Amount
is greater than $2,500,000, but less than $5,000,000; or (C) (I) $4,000,000
in
Cash Proceeds, in the event that the Equity Financing Amount is equal to or
greater than $5,000,000, and (II) common stock of the Options Purchaser that
represents no less than twenty-three percent (23%) (or, in the event that the
Equity Financing Amount is equal to or greater than $7,000,000, twenty-one
percent (21%)) of the outstanding equity (in terms of both economic interests
and voting power) of the Options Purchaser, on a fully-diluted basis,
immediately following the consummation of the Options Sale;
(iii) a
portion
of the Cash Proceeds is used by the Company to redeem at least $1,250,000 of
the
Principal of the Buyer Note, in accordance with Section 3(b) of the Buyer Note,
by wire transfer of immediately available funds to Buyer, prior to or
contemporaneously with the consummation of the Options Sale; provided, however,
that in the event that the Equity Financing Amount is greater than $2,500,000,
but less than $5,000,000, then a portion of the Cash Proceeds is used by the
Company to redeem Principal of the Buyer Note in an amount equal to at least
fifty percent (50%) of the Equity Financing Amount, in accordance with Section
3(b) of the Buyer Note; provided, further, however, that in the event that
the
Equity Financing Amount is greater than $5,000,000, then a portion of the Cash
Proceeds is used by the Company to redeem at least $2,500,000 of the Principal
of the Buyer Note, in accordance with Section 3(b) of the Buyer Note, in any
such case by wire transfer of immediately available funds to Buyer,
contemporaneously with the consummation of the Options Sale;
(iv) immediately
following the Options Sale, Buyer has a valid first priority, perfected security
interest in all of the Cash Proceeds, other than the Cash Proceeds used to
redeem or repay a portion of the Principal or accrued Interest under the Buyer
Note (as amended hereby on the date hereof and as may be further amended hereby)
in accordance with clause (iii) above, pursuant to an Account Control Agreement,
in the Purchaser Equity pursuant to a Pledge Agreement, and in the Options
Note,
if any;
(v) contemporaneously
with the closing of the Options Sale, the Company delivers to Buyer (A) all
certificates representing the Purchaser Equity, with
undated assignments separate from certificates or stock powers duly executed
in
blank by the Company and irrevocable proxies, each in a form acceptable to
Buyer, and
(B)
the Options Note, if any, with
an
allonge thereto, substantially in the form attached hereto as Exhibit
B;
(vi) contemporaneously
with the closing of the Options Sale, the Options Note, if required, is secured
by all of the assets of the Options Purchaser pursuant to a security agreement
substantially in the form attached hereto as Exhibit
C;
(vii) the
Options Purchaser, by operation of law or otherwise, accepts and assumes, and
the Company and its subsidiaries are released from, all of the obligations
and
liabilities of any nature of Options or otherwise related to the Options
Business or the Options Assets, whether fixed or unfixed, known or unknown,
secured or unsecured, absolute, accrued, contingent or otherwise and whether
due
or to become due (including account payables and any remaining “earn-out”
obligations incurred in connection with the Company’s initial acquisition of the
Options Business pursuant to that certain Agreement and Plan of Merger, dated as
of January 4, 2008 (the “Options Merger
Agreement”),
among
the Company, Options and Options Newsletter, Inc. (“Newsletter”));
(viii) Options
Purchaser agrees that from the date of consummation of the Options Sale until
the earlier of August 30, 2008 and the first date on which all Principal of,
and
accrued Interest on, the Buyer Note is paid in full, the Options Purchaser
shall
not incur, or suffer to exist, any Indebtedness or Liens (as such terms are
defined in the Purchase Agreement) other than Permitted Indebtedness and
Permitted Liens (as such terms are defined in the Purchase Agreement, provided
that such terms shall be construed as if such terms were applied to the Options
Purchaser, rather than the Company and the Subsidiaries) and Indebtedness
pursuant to the Options Note, if any, and Liens in favor of the Company securing
the Options Purchaser’s obligations under the Options Note;
(ix) on
the
date of consummation of the Options Sale (the “Options
Sale Closing Date”),
there
is not any breach or violation by the Company or the Subsidiaries of any of
the
representations, warranties, covenants and other provisions contained in, or
default under, this Agreement, the Purchase Agreement, the Buyer Note (as
amended hereby on the date hereof and as may be further amended hereby) or
any
of the other Transaction Documents, there is not any Event of Default or any
continuing event that with the passage of time or the giving of notice, or
both,
would constitute an Event of Default, and the representations and warranties
of
the Company contained herein are true and correct in all respects;
(x) Buyer
receives a certificate, executed by the Chief Executive Officer of the Company,
dated as of the date of consummation of the Options Sale, to the effect that
the
Company has satisfied the conditions set forth in this Section
2(a)
and as
to such other matters as may be reasonably requested by Buyer; and
(xi) the
Options Sale Closing Date occurs on or prior to June 20, 2008.
b. Buyer
hereby agrees with the Company that, subject to, and effective upon, the
consummation of the Options Sale, as permitted by Section
2
hereof,
and the redemption of the applicable portion of the Principal of the Buyer
Note
(as amended by Section
1(a)
hereof
and as may be further hereby) as required by Section
2(a)(iii)
hereof
as a condition to the consummation of the Options Sale (the time and date of
such consummation and redemption, the “Condition
Satisfaction Date”),
the
Buyer Note shall be amended, effective as of the Condition Satisfaction Date,
as
follows:
(i) the
definitions of “Interest
Rate”
and
“Maturity
Date”
set
forth in the Appendix to the Buyer Note shall be amended to read in their
entirety as follows:
“‘Interest
Rate”
means
twelve percent (12.00%) per annum.
“Maturity
Date”
means
August 30, 2008.’”
(ii) The
principal amount of the Buyer Note shall be increased such that the principal
amount of the Buyer Note equals the result of (X) the sum of (A) the outstanding
principal amount of the Buyer Note as of the date of consummation of the Options
Sale after giving effect to the redemption of Principal of the Buyer Note in
accordance with Section
2(a)(iii)
hereof
(the “Remaining
Principal Amount”),
and
(B) $350,000 multiplied by a fraction, the numerator of which is the Remaining
Principal Amount, and the denominator of which is $4,388,889, LESS (Y) the
Extension Amount (such result, the “Amended
Principal Amount”),
and,
accordingly, all references in the Buyer Note to the number “$4,388,889.00” and
“Four Million Three Hundred Eighty-Eight Thousand Eight Hundred Eighty-Nine
Dollars” shall be replaced with the Amended Principal Amount.
c. Buyer
hereby agrees with the Company that, subject to, and effective upon, the
Condition Satisfaction Date, Buyer hereby waives any breach of a representation
or warranty set forth in Section 3 of the Purchase Agreement, to the extent,
and
solely to the extent, such breach resulted solely from the status of the Company
as a “shell company” (as defined in Rule 12b-2 promulgated under the 0000 Xxx)
prior to the Company’s consummation on August 31, 2007 of the merger
contemplated by that certain Agreement and Plan of Merger, dated as of August
31, 2007, among the Company, Desktop Interactive, Inc., Customer Acquisition
Network, Inc. and Desktop Acquisition Sub, Inc., and acknowledges that Buyer
shall have no rights or remedies against the Company as a result of any such
breach. The limited waiver set forth in this Section
2(c)
is not,
nor shall it be deemed to be, a waiver under any other circumstance or a waiver
of any other condition, requirement, provision or breach of, or rights under,
this Agreement, the Buyer Note (as amended hereby on the date hereof and as
may
be further amended hereby), any of the other Transaction Documents or any other
agreement or instrument, and shall not be deemed to establish a custom or course
of dealing. Buyer acknowledges that as of the date hereof it is not aware of
any
breaches or defaults by the Company or any of the Subsidiaries under the
Purchase Agreement, the Buyer Note or the other Transaction Documents, other
than any breach that has been expressly waived by Buyer pursuant to this
Section
2(c).
3. Representations
and Warranties of the Company.
The
Company represents and warrants to Buyer that:
a. Authorization;
Enforcement; Validity.
Each of
the Company and the Subsidiaries has the requisite corporate power and authority
to enter into and perform its obligations under this Agreement and the Buyer
Note (as amended by Section
1(a)
hereof
and as may be further amended by Section
2(b)
hereof).
The execution and delivery of this Agreement by the Company and the Subsidiaries
and the consummation of the transactions contemplated hereby and thereby and
by
the Buyer Note (as amended by Section
1(a)
hereof
and as may be further amended by Section
2(b)
hereof)
have been duly authorized by the respective boards of directors of the Company
and the Subsidiaries, and no further consent or authorization is required by
the
Company, the Subsidiaries or their respective boards of directors or
shareholders. This Agreement has been duly executed and delivered by the Company
and each of the Subsidiaries, and each of this Agreement and the Buyer Note
(as
amended by Section
1(a)
hereof
and as may be further amended by Section
2(b)
hereof)
constitutes a valid and binding obligation of each of the Company and the
Subsidiaries (as applicable), enforceable against each of the Company and the
Subsidiaries (as applicable) in accordance with its terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar
laws
relating to, or affecting generally, the enforcement of applicable creditors’
rights and remedies.
b. Issuance
of Securities.
The
amendment of the Buyer Note in accordance with each of Sections
1(a)
and
2(b)
is
exempt from registration under the Securities Act of 1933, as amended, and
applicable state securities laws, based upon the representation made by Buyer
herein that Buyer is an “accredited investor.”
c. No
Conflicts.
The
execution and delivery of this Agreement by each of the Company and the
Subsidiaries, the performance by each of the Company and the Subsidiaries (as
applicable) of their respective obligations hereunder and under the Buyer Note
(as amended hereby on the date hereof and as may be further amended hereby)
and
the consummation by each of the Company and the Subsidiaries (as applicable)
of
the transactions contemplated hereby and by the Buyer Note (as amended by
Section
1(a)
hereof
and as may be further amended by Section
2(b)
hereof)
will not (i) result in a violation of the certificate of incorporation or the
bylaws of the Company or the organizational documents of any Subsidiary; (ii)
conflict with, or constitute a breach or default (or an event which, with the
giving of notice or lapse of time or both, constitutes or would constitute
a
breach or default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or other remedy with respect to, any agreement,
indenture or instrument to which the Company or any of the Subsidiaries is
a
party; or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations)
applicable to the Company or any of the Subsidiaries or by which any property
or
asset of the Company or any of the Subsidiaries is bound or affected. Neither
the Company nor any of the Subsidiaries is required to obtain any consent,
authorization or order of or, except as required by Section
6
below,
make any filing or registration with, any court or governmental agency or any
regulatory or self-regulatory agency in order for it to execute, deliver or
perform any of its obligations under, or contemplated by, this Agreement or
the
Buyer Note (as amended hereby on the date hereof and as may be further amended
hereby).
d. No
Breach or Default.
As of
the date hereof, neither the Company nor any Subsidiary is in breach or
violation of any representation, warranty, covenant of other provision of,
or in
default under, the Purchase Agreement, the Buyer Note, or any of the other
Transaction Documents, other than any breach that has been expressly waived
by
Buyer pursuant to Section
2(c)
hereof.
e. Options
Assets.
Except
as set forth on Schedule
3(e),
as of
the date hereof the assets of Options consist of, and at the time of the Options
Sale the assets of Options (constituting the Options Assets to be sold in the
Options Sale) will consist of, solely those assets acquired by the Company
or
the Subsidiaries pursuant to the Options Merger Agreement. The only business
conducted by Options as of the date hereof, and the only business that will
be
conducted by Options through the consummation of the Options Sale (constituting
the Options Business to be sold in the Options Sale), is the business conducted
by Newsletter prior to the consummation of the merger contemplated by the
Options Merger Agreement.
f. Outstanding
Note.
As of
the date hereof, the Buyer Note is the only Note outstanding.
g. Shell
Company Status.
The
Company has not been a “shell company” (as defined in Rule 12b-2 promulgated
under the 0000 Xxx) at any after August 31, 2007.
4. Representation
and Warranties of Buyer.
Buyer
represents and warrants to the Company that (a) Buyer is a validly existing
limited partnership and has the requisite limited partnership power and
authority to enter into and perform its obligations under this Agreement, (b)
this Agreement has been duly and validly authorized, executed and delivered
on
behalf of Buyer and is a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, and (c) Buyer is an “accredited
investor,” as that term is defined in Rule 501(a) of Regulation D.
5. Acknowledgment
of the Company and the Subsidiaries.
The
Company and each of the Subsidiaries hereby irrevocably and unconditionally
acknowledge, affirm and covenant to Buyer that:
a. Buyer
is
not in default under any of the Transaction Documents and has not otherwise
breached any obligations to the Company or any of the Subsidiaries;
and
b. there
are
no offsets, counterclaims or defenses to the Liabilities (as defined in the
Security Agreement) or Obligations (as defined in the Guaranty), including
the
liabilities and obligations of the Company under the Buyer Note (as amended
hereby on the date hereof and as may be further amended hereby), or to the
rights, remedies or powers of Buyer in respect of any of the Liabilities or
Obligations or any of the Transaction Documents, and the Company and each of
the
Subsidiaries agree not to interpose (and each does hereby waive and release)
any
such defense, set-off or counterclaim in any action brought by Buyer with
respect thereto.
6. Covenants. Prior
to
5:30 p.m., New York time, on June 23, 2008, the Company shall file a current
report on Form 8-K (the “Amendment
Form 8-K”)
with
the Securities and Exchange Commission (the “SEC”), describing
the terms of this Agreement and including this Agreement as an exhibit thereto,
in the form required by the 1934 Act. From and after the filing of this
Amendment Form 8-K with the SEC, Buyer shall not be in possession of any
material nonpublic information received from the Company or any of its
affiliates, officers, directors, employees or agents as a result of this
Agreement or any of the matters referred to herein.
7. Expenses.
The
Company hereby covenants and agrees to promptly reimburse Buyer for all of
its
out-of-pocket fees, costs and expenses, including attorneys’ fees and expenses,
up to an aggregate of $20,000, incurred in connection with the drafting,
negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby, including by reimbursement of all of such
fees, costs and expenses incurred by Buyer through the date hereof within one
(1) Business Day after notification thereof.
8. Avoidance
of Doubt.
The
parties hereto hereby agree, for the avoidance of doubt, that (a) the term
“Notes”
as
used
in the Transaction Documents shall mean the Buyer Note, as, and to the extent,
amended by this Agreement, and (b) the terms “Liabilities”
and
“Obligations”
as
used
in the Transaction Documents shall include all liabilities and obligations
of
the Company under this Agreement, under the Buyer Note (as amended hereby on
the
date hereof and as may be further amended hereby) and under the other
Transaction Documents, and this Agreement shall be included within the meaning
of the term “Transaction
Documents,”
and
each of the parties hereto agrees not to take any contrary positions.
9. Reservation
of Rights.
Except
as expressly set forth in (and subject to the terms and conditions of)
Section
2(c)
hereof,
Buyer has not hereby waived, or agreed to waive, (a) any breach, default or
Event of Default that may be continuing under any of the Transaction Documents
or (b) any of Buyer’s rights or remedies arising from any such breach, default
or Event of Default or otherwise available under the Transaction Documents
or at
law. Buyer expressly reserves all such rights and remedies.
10. Successors
and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. The successors
and
assigns of such entities shall include their respective receivers, trustees
or
debtors-in-possession.
11. Further
Assurances.
The
Company hereby agrees from time to time, as and when requested by Buyer, to
execute and deliver or cause to be executed and delivered, all such documents,
instruments and agreements, including secretary’s certificates, stock powers and
irrevocable transfer agent instructions, and to take or cause to be taken such
further or other action, as Buyer may reasonably deem necessary or desirable
in
order to carry out the intent and purposes of this Agreement, the Buyer Note
(as
amended hereby on the date hereof and as may be further amended hereby) and
the
other Transaction Documents.
12. Rules
of Construction.
All
words in the singular or plural include the singular and plural and pronouns
stated in either the masculine, the feminine or neuter gender shall include
the
masculine, feminine and neuter, and the use of the word “including” in this
Agreement shall be by way of example rather than limitation.
13. Governing
Law; Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State
of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting in the City of New York, borough of
Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT
TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
14. Counterparts.
This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to each other party.
In
the
event that any signature to this Agreement or any amendment hereto is delivered
by facsimile transmission or by e-mail delivery of a “.pdf” format data file,
such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or “.pdf” signature page were an original
thereof. No party hereto shall raise the use of a facsimile machine or e-mail
delivery of a “.pdf” format data file to deliver a signature to this Agreement
or any amendment hereto or the fact that such signature was transmitted or
communicated through the use of a facsimile machine or e-mail delivery of a
“.pdf” format data file as a defense to the formation or enforceability of a
contract, and each party hereto forever waives any such defense.
15. Section
Headings.
The
section headings herein are for convenience of reference only, and shall not
affect in any way the interpretation of any of the provisions
hereof.
16. No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rule of strict construction
will
be applied against any party.
17. Merger.
This
Agreement, the Buyer Note (as amended hereby on the date hereof and as may
be
further amended hereby) and the other Transaction Documents represent the final
agreement of each of the parties hereto with respect to the matters contained
herein and may not be contradicted by evidence of prior or contemporaneous
agreements, or prior or subsequent oral agreements, among any of the parties
hereto. Except as expressly set forth in this Agreement, in the Buyer Note
(as
amended hereby on the date hereof and as may be further amended hereby) and
the
other Transaction Documents, neither the Company nor Buyer makes any
representation, warranty, covenant or undertaking with respect to such
matters.
18. Interpretative
Matters.
Unless
the context otherwise requires, (i) all references to Sections, Schedules,
Appendices or Exhibits are to Sections, Schedules, Appendices or Exhibits
contained in or attached to this Agreement, (b) words in the singular or plural
include the singular and plural and pronouns stated in either the masculine,
the
feminine or neuter gender shall include the masculine, feminine and neuter,
(c)
the words “hereof,” “herein” and words of similar effect shall reference this
Agreement in its entirety, and (d) the use of the word “including” in this
Agreement shall be by way of example rather than limitation.
19. Reaffirmation.
Each of
the Company and the Subsidiaries as issuer, debtor, grantor, pledgor, mortgagor,
guarantor or assignor, or in other any other similar capacity in which such
Person grants liens or security interests in its property or otherwise acts
as
accommodation party or guarantor, as the case may be, hereby (i) acknowledges
and agrees that it has reviewed this Agreement, (ii) ratifies and reaffirms
all
of its obligations, contingent or otherwise, under each of the Transaction
Documents, including the Buyer Note (as amended hereby on the date hereof and
as
may be further amended hereby) to which it is a party (after giving effect
hereto) and (iii) to the extent such Person granted liens on or security
interests in any of its property pursuant to any such Transaction Document
as
security for or otherwise guaranteed the Liabilities under or with respect
to
the Transaction Documents, ratifies and reaffirms such guarantee and grant
of
security interests and liens and confirms and agrees that such security
interests and liens hereafter secure all of the Liabilities (as amended hereby
on the date hereof and as may be further amended hereby). Each of the Company
and the Subsidiaries hereby consents to this Agreement and acknowledges that
each of the Transaction Documents, including the Buyer Note (as amended hereby
on the date hereof and as may be further amended hereby), remains in full force
and effect and is hereby ratified and reaffirmed.
[Remainder
of page intentionally left blank; Signature page
follows]
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by each
of
the undersigned as of the date first above written.
|
COMPANY:
CUSTOMER
ACQUISITION NETWORK HOLDINGS, INC.
|
||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
SUBSIDIARIES:
CUSTOMER
ACQUISITION NETWORK, INC.
|
||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
DESKTOP
ACQUISITION SUB, INC.
|
||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
LONGVIEW
MARQUIS MASTER FUND, L.P.
|
|
|
By:
|
Viking
Asset Management, LLC
|
|
Its:
|
Investment
Advisor
|
|
/s/
S. Xxxxxxx Xxxxxxx
|
|
|
Name:
|
S.
Xxxxxxx Xxxxxxx
|
|
Title:
|
Chief
Financial Officer
|
Exhibit
A
Wire
Instructions
Exhibit
B
Form
of Options Note and Form of Allonge
Exhibit
C
Form
of Security Agreement
Schedule
3(e)
Options
Assets
None.
